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Frequently Asked Questions (FAQs)

Questions About Justice Participation, General Protocols

​If a justice has a conflict, then a senior judge who previously served on the Supreme Court participates on the case, and if two justices have conflicts, then two such senior judges participate.  In those situations, the case is decided by a seven-member court.  An exception is when more than two sitting justices have conflicts; in that instance, only two senior judges may participate, and so the case is decided by a six-member court.  See ORS 2.111(5) (no more than two senior judges may sit on a Supreme Court case considered en banc).  ​

​The court's process is designed to utilize the service of retired justices (now senior judges) on a rotation basis, prioritizing those who have post-retirement service time remaining as part of their state judge retirement plan, and to assign cases based on availability, with the particular case(s) identified to the senior justice only after the assignment is made.  Court staff rotates through a list of those senior judges with service time remaining, confirming assignments based on availability on scheduled argument dates.  If no senior judge with remaining service time is available to sit on a particular date, court staff uses a similar process to determine whether a retired member is available to sit on a volunteer basis.​

The court's current practice is that a new justice does not participate on decisions already under advisement; instead, the recently retired justice continues to participate.  An exception is when two justices have recently retired, a sitting justice already was not participating, and a senior judge already was participating.  In that instance, one new justice participates (determined by rotation), and the senior judge continues to participate, but only one of the two recently retired justices participates (also determined by rotation).  Similarly, two new justices may participate if the court recently experienced an additional vacancy.  See ORS 2.111(5) (no more than two senior judges may sit on a Supreme Court case considered en banc); (8)(a) (Supreme Court justice may participate, without resubmission of the case, when the justice was appointed or elected to the court after submission of the case).​